The Future of Recording the Past in England, Wales, Scotland, Ireland and the United States

On October 12, 2011, the American Bar Association International Law Section and its Art and Cultural Heritage Law Committee sponsored a panel about the law of finds in England and Wales, Ireland, Scotland and the United States for ABA members attending a fall meeting in Dublin:Program Chair and Speaker: Patty Gerstenblith, DePaul University College of Law.Program Chair and Moderator: Peter K. Tompa, Bailey & Ehrenberg PLLC.Speakers:Roger Bland , British Museum.Stuart Campbell, Treasure Trove Unit, Scottish National Heritage.Eamonn Kelly, Irish National Heritage. The panel brought together these experts to consider the benefits and disadvantages of the systems in each of these countries, the policy goals fostered by each, and the effect the current economic crisis on the implementation of these different systems.

Eamonn Kelly (“EK”) spoke first about Irish law. After Independence the new Irish Republic looked to recognized experts to help formulate policy towards finds of archaeological artifacts. In 1928 a Government Select Committee under the chairmanship of Nils Litberg, (a Swedish ethnologist and museum director), began looking at these issues. Based on the Select Committee’s recommendations, the Irish Republic passed a Monuments Law in 1930 that regulated, by license, the excavation, export and conservation of archaeological objects and required that the finding of archaeological objects be reported to the National Museum.

Subsequent legislation dating from 1994 made it illegal to be in possession of an unreported archaeological object or to trade in unreported antiquities. Unreported antiquities could be seized as State property. There is broad consensus in Ireland that newly found archaeological objects should be treated as State property and that finders should receive discretionary awards. Irish maintain a direct connection to their land and their ancestors that helps make looting taboo.

Patty Gerstenblith (“PG”) spoke next about American law. PG explained that there is a division of responsibility between the federal and state governments. The federal government regulates federally-owned and controlled lands, including Native American tribal lands, and also controls interstate and international commerce in archaeological resources. In contrast, State governments maintain responsibility for state-owned and controlled lands.

The federal government owns approximately 30 percent of the landmass in the United States. State and local governments indirectly control activity on private land, in part through zoning and other land-use regulations, but archaeological resources located on private land remain largely unregulated. Most federal government landholdings are in the West, which means that this land receives more protections than the land in the Eastern part of the country.

The Constitution's “takings clause” limits the ability of state and federal governments to protect archaeological artifacts on private land. The Native American Graves Protection and Repatriation Act (“NAGPRA”) generally precludes the removal of Native American artifacts from federal land. The Archaeological Resources Protection Act (“ARPA”) also governs removal of artifacts from federal land. Most states have equivalents of each statute.

Stuart Campbell (“SC”) next discussed Scottish law. The Scots have retained common law treasure trove. Treasure trove derives from medieval law. Awarding found treasure to the King was a way to add money to the treasury. The concept is similar to an intestate estate going to the crown. Over time, rewards were offered to finders. Today, Scotland offers fair market awards to finders who comply with the law. The weakness of common law is its lack of definition. However, this lack of definition also allows for flexibility. Any system needs public buy-in making it essential to offer awards. The general public typically views illicit excavation as being no worse than a traffic violation. Over time, public education can make people change behavior. For example, drunk driving is no longer publicly acceptable. There are only about 400 metal detectorists in Scotland. In contrast, there are approximately 10,000 in England and Wales. Accordingly, Scottish officials have to deal with fewer finds and fewer problems than their English and Welsh counterparts.

Roger Bland (“RB”) spoke last about English and Welsh law. The Treasure Act mandates that most significant metal detector finds be reported. If the state decides to keep the find, it must pay a fair market reward. Many finds (typically of ancient coins) are returned to the finder. There are approximately 20,000 protected sites in the United Kingdom that are off limits to metal detectorists. There has been a significant increase in reported finds since the Treasure Act went into effect in 1996. There also is a voluntary “Portable Antiquities Scheme” (“PAS”) which encourages finders to report artifacts not subject to mandatory reporting under the Treasure Act. A recent significant find is the Stratfordshire Hoard of Anglo-Saxon artifacts. Gaps in the law get addressed when the Treasure Act is reviewed every five (5) years. There was a recent controversy about the Crosby Garrett Roman Parade Helmet. Because it did not fit the legal definition of “treasure,” it was auctioned off. However, PAS recorded its find spot.

Question and Answer Period

EK noted that the Irish sought to distance themselves from the British system when they sought advice from experts in archaeology. There was already a regulatory system in place before the advent of the metal detector. The Irish feel close to the land of their ancestors so looting is rare. Moreover, unlike England, most Irish land is not plough land but pasture land, which is much more difficult to dig.

Tight government spending has impacted the Irish, Scots, English and Welsh. The popularity of PAS and the Treasure Act has meant that its funding has been preserved. However, it has become more difficult to raise money to pay a fair market rewards so that artifacts can be kept in museums. RB still believes that no important finds covered under the Treasure Act have been returned to the finder for lack of funds. It’s harder to attract interest in less significant finds of coins and these often are returned to the finder. In Ireland, there has been a fall off in construction projects and hence rescue archaeology funded by developers.

EK, SC and RB discussed their favorite finds. EK described a 4th Century burial of a trader of African origin who lived among the Irish. SC described a find of antique toys. This find was not valuable but nevertheless was a touching reminder of children who lived long ago. RB mentioned both the Stratfordshire Hoard of Anglo Saxon artifacts and the immense Fromme hoard of late Roman coins. The Fromme Hoard contained rare issues of Usurper Emperors who controlled Roman Britain. Careful excavation of the pot containing the hoard has led to a reevaluation of such hoards as votive deposits.

Papers from this conference have been just posted here under "Winter 2012 Newsletter":
http://apps.americanbar.org/dch/committee.cfm?com=IC936000